Terms and Conditions
These Customer Terms are made between Sandpoint Consulting, LLC ("Sandpoint") and customer ("Client"). Sandpoint has agreed to provide Services to Client subject to the terms and conditions of these Customer Terms. Any reference to Terms herein shall also include the order form. By accepting an order form that references these terms, Client agrees to these terms.
1. STATUS
Sandpoint, including its employees, agents or designees, is an independent contractor not an employee of Client or any company affiliated with Client. Sandpoint will provide the Services under Client's general direction, but Sandpoint will determine the method, details, and means of performing the Services. This Agreement does not create a partnership or joint venture and neither party will act on behalf of the other party except as agreed upon in this Agreement.
Sandpoint may represent, perform services for, and contract with as many additional clients, persons, or companies as Sandpoint, in its sole discretion, sees fit. Sandpoint agrees neither it nor any of its agents, employees or assigns shall be entitled to the rights or benefits afforded to Client's employees, including disability or unemployment insurance, workers' compensation, medical insurance, sick leave, or any other employment benefit.
2. NON-SOLICITATION
Sandpoint has the absolute right to utilize employees or the services of any number of subcontractors or agents to complete the Services with the understanding that all of the terms of this Agreement will apply to them. Client agrees that while any Statement of Work is in force and for a period of twelve (12) months thereafter, not to directly or indirectly solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any of the other’s officers, employees, third party contractors and associates who have been involved in or associated with this Agreement without the other’s prior written consent.
3. CLIENT CONTENT
A. Client agrees to provide Sandpoint with certain materials needed to complete the project which might include written work, biographies, images, logos and trademarks and other information ("Client Content"). Client Content will be supplied in a form suitable for reproduction or incorporation into the Services without further preparation.
B. Client warrants and represents that any elements of the Client Content provided to Sandpoint are either owned by Client, or that Client has permission or license to its use. Client represents and warrants that the Client Content (a) does not infringe on the rights of any third party or any rights of publicity or privacy; (b) does not violate any law, statute, ordinance, or regulation; and (c) is not defamatory, trade libelous, unlawfully threatening, or unlawfully harassing.
C. Client agrees to indemnify, save and hold Sandpoint harmless, at Client's own costs and expense, against any and all damages, liabilities, costs, losses or expenses arising out of any third party claims, disputes or causes of action arising from a breach of the warranties and representations of this Section.
4. INTELLECTUAL PROPERTY
In the event that the Services result in the creation of any intellectual property (i.e. copyrights, trademarks and patents), Sandpoint agrees to transfer all rights therein to Client only upon receipt of payment in-full for the Services and subject to the following: (a) Client will own any text content, photographs, audio-visual works and other data created by Sandpoint as part of the Services; (b) Client will own all Client Content, unless someone else owns it; and (c) preliminary ideas and/or work created by Sandpoint and not incorporated into the Services remain the property of Sandpoint.
5. CONFIDENTIAL INFORMATION
The parties acknowledge that in connection with this Agreement they may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Both parties will keep all Confidential Information secret, won’t disclose it to any third party, and will not use it except as needed to complete the project, except as may be required by a court or governmental authority. However, Confidential Information will not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
6. PROMOTIONAL USE
Sandpoint reserves the right to take credit for and display the Services for promotional, marketing and advertising purposes. Sandpoint reserves the right to speak and/or write about the Services in any promotional materials. Sandpoint also reserves the right to add the Client to a client list.
7. WARRANTY & INDEMNIFICATION
A. The parties hereby represent and warrant to one another that: (i) they have the full and irrevocable right, power and authority to enter into this Agreement and to perform all of the obligations required hereunder; and (ii) they will be solely and entirely responsible for all acts performed in connection with the project. Sandpoint warrants that their contributions to the Services will not violate or infringe upon any third party’s common law or statutory rights including, without limitation, the rights of privacy or publicity of any person or entity.
B. The parties agree to indemnify, save and hold one another harmless from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the responsibilities or obligations, representations or warranties under this Agreement.
C. Except as set forth in this section (and Section 3 above) each party expressly disclaims all warranties or conditions of any kind, express or implied, including without limitation the implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.
D. Limitations on liability. Except with respect to breaches of Sections 3.3 and 3.5 and each party’s indemnity obligations under Sections 3.3 and 3.7, liability shall be confined to actual damages and in no event shall either party be liable for any lost profits or special, incidental, or consequential damages arising out of or in connection with this agreement, however caused and on any theory of liability, even if such party has been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy of any kind.
E. Collections: The foregoing notwithstanding, if Sandpoint brings any legal action, including an action for declaratory relief, to enforce or interpret any provision of this Agreement related to payment of fees and expenses by Client (“Collection”), Sandpoint will be entitled to recovery of all attorneys' fees and costs associated with Collection, in addition to any other relief to which it may be entitled.
F. In all circumstances, the maximum liability of Sandpoint, its directors, officers, employees, design agents and affiliates, to Client for damages for any and all causes whatsoever, and Client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to Sandpoint’s net profits under this Agreement.
8. TERMINATION OF AGREEMENT
A. Unless otherwise terminated as provided in this Agreement, this Agreement will continue from the date first written above and shall remain in force in perpetuity. Any changes to this agreement must be agreed upon in writing by both parties.
B. Termination on Notice. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving seven (7) days' written notice to the other party.
C. Termination on Bankruptcy. This Agreement will terminate automatically if either party files for bankruptcy or becomes insolvent.
D. Termination for Default. If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non-breaching party may terminate this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five (5) days after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this Agreement includes, but is not limited to, the following: (i) Client's failure to pay Sandpoint any compensation due within five (5) days after written demand for payment; (ii) Sandpoint’s failure to complete the Services specified in Section 1; or (iii) either party’s material breach of any representation or warranty.
E. Termination by Sandpoint. Sandpoint reserves the right to terminate this Agreement and at any time if (a) in its sole determination, the Services involve working in unsafe conditions; or (b) it cannot render services requested by Client through no fault of Sandpoint.
F. Effect of Termination. Upon any termination or expiration of this Agreement, for any reason, Client shall remain obligated to pay Sandpoint for all Services rendered and work performed up to the effective date of such expiration or termination.
9. GENERAL PROVISIONS
A. Force Majeure. Sandpoint won’t be deemed in breach of this Agreement if Sandpoint is unable to complete any portion of the Services due to fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Sandpoint or any local, state, federal, national or international law, governmental order or regulation or any other event beyond its control.
B. Governing Law. This Agreement is a legal document under exclusive jurisdiction of the courts of California in the United States of America. Venue of any action arising out of controversy shall be in San Francisco County.
C. Severability. If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement will still remain in full force and effect and the invalid or unenforceable part will be replaced by a valid or enforceable provision.
D. Modification/Waiver. Any modification of this Agreement must be in writing, except Sandpoint may invoice Client for costs and expenses or any additional requested services. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement will not be construed as a waiver of such rights.
E. Notices. All notices will be sent in writing either by e-mail or by certified or registered mail and will be sent to the addresses identified above, unless notification of change of address is given in writing. Notice will be effective upon receipt or in the case of email, upon confirmation of receipt.
F. No Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party.
G. Integration. This Agreement comprises the entire understanding between the parties, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions.